Potomac Edison Co. v. West

• Decision Date: 07 December 1933
• Docket Number: 48.
• Parties: POTOMAC EDISON CO. ET AL. v. WEST ET AL.
• Court: Maryland Court of Appeals

169 A. 480

165 Md. 462

POTOMAC EDISON CO. ET AL. v. WEST ET AL.

No. 48.

Court of Appeals of Maryland

December 7, 1933

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

Suit by the Potomac Edison Company and others against Harold E. West and others, constituting the Public Service Commission of Maryland. From a decree of dismissal, plaintiffs appeal.

Reversed and remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, DIGGES PARKE, and SLOAN, JJ.

Francis J. Carey, of Baltimore, and Oliver B. Merrill, Jr., of New York City (Piper, Carey & Hall, of Baltimore, and Stoddard M Stevens, Jr., of New York City, on the brief), for appellants.

Wm Cabell Bruce and John Henry Lewin, both of Baltimore, for appellees.

PARKE Judge.

The question at bar is whether or not a public service corporation has a right of appeal to a court of common-law jurisdiction from an order of the public service commission that determined, in its statutory sense, the final valuation of the property of the public utility. The public service commission of Maryland made a valuation of the property of the Potomac Edison Company and its three subsidiary public utility corporations and passed a provisional order on November 29, 1932, determining the fair value of the corporate property for rate-making purposes as of June 30 1931.

The corporations embraced in the order duly filed a protest against the passage of a final order confirming the valuation. The ground of the protest was that the valuation was unreasonable and unlawful. After a hearing, the commission rejected the protest and determined that the valuation made was the fair value of the corporate property, and, accordingly, on March 1, 1933, the commission passed an order confirming the order of November 29, 1932. Upon the theory that this valuation was unreasonable and unlawful, the Potomac Edison Company and its three subsidiary corporations instituted a suit in the circuit court of Baltimore City to have the commission's valuation vacated and set aside. The bill of complaint was amended and a demurrer on the part of the commission raised the question of the right of the plaintiffs to have the order of the commission reviewed and, therefore, of the jurisdiction of the court to entertain an appeal.

The solution of the problem presented by the demurrer is to be found within a sound construction of the provisions of the statute with reference to the right of review and of appeal. The first section of the public service commission statute which treats of the matter is section 11 of the original act of 1910, c. 180, as modified by chapter 354 of the Acts of 1927. Omitting the preliminary paragraphs, which relate to a rehearing and the service of orders of the commission, the two concluding paragraphs of the section are pertinent, and will be quoted:

"All orders of the Commission shall take effect within such reasonable time as it shall prescribe, and shall continue in force until its further order, or for a specified period of time according as shall be prescribed in the order, unless the same shall be suspended, or modified, or set aside by the Commission, or be suspended or set aside by a court of competent jurisdiction.

Any company, corporation, association, person or partnership subject to any of the provisions of this sub-title, or other person or party in interest, shall have the right to proceed in the courts to vacate, set aside or have modified any order of said Commission on the grounds that such order is unreasonable or unlawful, as hereinafter more particularly set forth." Code Supp. 1929, art. 23, § 359.

It is clear from the context of the section that the order within the meaning of the language used is not an interlocutory or procedural order passed in the course of a matter before the commission and not determining any right or controversy involving a justiciable question under the enactment, but one decisive of some subject-matter of which the commission has jurisdiction and the power to enforce against any party interested. Such a construction is consistent with the spirit of the law and contributes to its efficient and orderly administration. The soundness of the construction given is attested by such provisions, for instance, as these found in the first two unquoted paragraphs of section 359: (a) "After an order has been made by the Commission, any party interested therein may apply for a rehearing in respect to any matter determined therein, * * * if a rehearing shall be granted, the same shall be determined by the Commission within thirty days after the same shall be finally submitted. Any application for such a rehearing shall not excuse any common carrier, railroad corporation, or street railroad corporation, or any other corporation, or company or person, subject to any of the provisions of this sub-title, from complying with or obeying any order, or any requirements of any order of the Commission, or operate in any manner to stay or postpone the enforcement thereof, except as the Commission may by order direct" (first paragraph); and (b) every order shall be served on the person or corporation affected thereby, and within a time specified in the order, and such person or corporation must, if so required in the order, notify the commission whether the terms of the order are accepted and will be obeyed (second paragraph). From the third paragraph, which has been quoted in this opinion, it is seen that all orders shall take effect at the time prescribed, and shall continue in force until further order from the commission or for the time specified, unless the order be suspended, or modified, or set aside by the commission, or be suspended or set aside by a court of competent jurisdiction. These illustrations are convincing that a procedural or interlocutory order incident to the course of the proceedings is not the subject-matter of the section under consideration.

By the explicit terms of section 359 (11), any company, corporation, association, person, or partnership subject to any of the provisions of the statute or other person or party in interest shall have the right to proceed in the courts to vacate, set aside, or have modified any order, within the contemplation of the statute, on the grounds that such order is unreasonable or unlawful. So, it cannot be denied that the legislative intent has been plainly expressed and that it comprehended and designedly embraced any order of any kind which is within the meaning of the section.

The commission, however, contends that the general and comprehensive term "any order" is limited in its application by the clause "as hereinafter more particularly set forth," with which the last paragraph of section 359 is concluded. In other words, the clause is to apply to the right instead of the remedy. So, instead of having reference to the procedure whereby the party aggrieved could, as in the statute thereafter more particularly set forth, enforce his right to apply to the courts to vacate, set aside, or have modified any order of the commission on the ground that such order is unreasonable or unlawful, this final clause, the commission asserts, so governs the meaning of the text that the right to proceed in the courts is not in respect to any unreasonable or unlawful order, but only to those orders as thereinafter in the act are more particularly set forth.

If this argument of the commission should prevail, a right of review and appeal would not be given in every case where the order was unreasonable or unlawful, but would be confined to a more circumscribed class of unreasonable or unlawful orders. It is difficult to ascribe an intention to the Legislature to exclude any unreasonable or unlawful order from the operation of the act, in the absence of an unmistakable expression of legislative will.

The commission relies upon section 404 of article 23 of the Code as the section to which the quoted concluding clause of section 359 of article 23 refers. These two sections were, respectively, sections 43 and 11 of the original act and are now practically in the same form as when the Act of 1910, c. 180, was passed. The two sections are to be construed together and both given effect, if the principles of construction permit.

In the original law of 1910, the fifty-six sections of the act were grouped with reference to their nature under bold headings or captions and section 43 (now section 404 of article 23 and unchanged) was the first section under its caption, and, although long, must be quoted:

Procedure in the Courts.

"404. Any corporation subject to this subtitle, or any of the provisions of this subtitle, and any person in interest being dissatisfied with any order of the commission, fixing any rate or rates, tolls, charges, schedules, joint...